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Video: In the Mojave Desert, a heavy cross to bear

Closed captioning of: In the Mojave Desert, a heavy cross to bear

>>>we switch to the law and a classic church versus state case before the
supreme court
. it involves a cross on
federal land
. and while it was meant to honor our
american war
vets, its critics say that's besides the point. it got all the way to the
high court
of the
united states
. our justice correspondent,
pete williams
is there for the arguments. pete, good evening.

>>reporter: brian, crosses of one kind of enough have stood on the desert for 35 years put up to honor servicemen killed in battle. the question is, can this one stay? it towers above an outcropping called sunrise rock. a 7 foot tall
white cross
made of white pipes in a remote part of california's
mojave desert
. that's
federal land
. but frank wona, a federal employee, thinks it doesn't belong there. as a practicing catholic, he has nothing against crosses but he says this shows government favoriteism against one religion.

>>i don't want the cross to be permanently placed on
federal governmentpublic lands
or any other
public lands
for that matter.

>>reporter: you now ep closed in plywood, on lower courts. hoping to end the dispute, congress ordered the land under the cross sold to the vfw.

>>this is a cross to honor the war dead. most of the cemeteries, do not tear this cross down.

>>reporter: if it has to go, veteran groups fear other groups that feature crosses might be next like this one in the center of
southern maryland
on a prominent highway or arlg nation
arlington national cemetery
. just as ginsburg said to resolve any doubt, the government could take the cross down, formally transfer the land and let the vfw put it up the next day.

WASHINGTON — As the Supreme Court weighed a dispute over a religious symbol on public land Wednesday, Justice Antonin Scalia was having difficulty understanding how some people might feel excluded by a cross that was put up as a memorial to soldiers killed in World War I.

"It's erected as a war memorial. I assume it is erected in honor of all of the war dead," Scalia said of the cross that the Veterans of Foreign Wars built 75 years ago atop an outcropping in the Mojave National Preserve. "What would you have them erect?...Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?"

Peter Eliasberg, the American Civil Liberties Union lawyer arguing the case, explained that the cross is the predominant symbol of Christianity and commonly used at Christian grave sites, not that the devoutly Catholic Scalia needed to be told that.

"I have been in Jewish cemeteries," Eliasberg continued. "There is never a cross on a tombstone of a Jew."

There was mild laughter in the packed courtroom, but not from Scalia.

"I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion," Scalia said, clearly irritated by the exchange.

The court is considering whether the cross' presence on the land violates the Constitution, despite Congress' decision to transfer the land on which the cross sits to private ownership.

Scalia made plain his view of the case, strongly suggesting that he sees no problem with the cross at all. By contrast, lower federal courts did find a constitutional violation and were not persuaded that the land transfer fixed the problem.

The cross has been covered with plywood for the past several years following the court rulings. Court papers describe the cross as being 5 feet to 8 feet tall.

Although Scalia's take on the dispute seemed clear, the case appeared to diminish in importance as the hourlong argument continued.

Rather than serve as a statement about the separation of church and state or even how people get past the courthouse door to challenge religious symbols on government land, the case could end up focused narrowly on the land transfer.

Even on that issue, the court appeared divided between conservatives and liberals.

Several conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits ends any government endorsement of the cross and takes care of the constitutional questions.

"Isn't that a sensible interpretation" of a court order prohibiting the cross' display on government property? Justice Samuel Alito asked.

The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end-run around the First Amendment prohibition against government endorsement of religion.

Justice Anthony Kennedy, often the decisive vote in these cases, said nothing to tip his hand.

Veterans groups are on both sides of the case, with some worrying that other religious symbols that serve as war memorials could be threatened by a ruling against the Mojave cross.

Eliasberg, who represents the former National Park Service employee who sued over the cross, said their fears are misplaced. He said two prominent symbols in Arlington National Cemetery, the Argonne Cross Memorial and Canadian Cross of Sacrifice, are different.

Whatever the court decides, it seems unlikely that the Mojave cross — where Easter Sunrise services have been held for decades — would have to come down.

Justice Ruth Bader Ginsburg indicated, and Eliasberg agreed, that even if the court finds problems with what Congress did, lawmakers probably could find a valid way to sell or give the land to veterans groups.

A decision is expected by spring.

The case is Salazar v. Buono, 08-472.

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